' MIAN MUHAMMAD AJMAL, J.---This regular first appeal is directed against the judgment/decree of the learned District Judge/Judge Land Acquisition, Haripur dated 30-11-1992 whereby he while partly accepting the objection petition filed by the objectors/appellants enhanced 'the compensation of land from Rs,6,000 per Kanal to Rs,9,950.20 per Kanal, thus awarded additional compensation of Rs,94,804.80 alongwith compulsory acquisition charges and interest but their claim relating to compensation for superstructure was rejected.
2. The Land Acquisition Collector Khanpur Dam vide Award No, 99 dated 27-6-1995 acquired residential property of the appellants built on Khasra Nos. 551 and 552 measuring 24 Kanals situated in the limits of village Khanpur, the compensation for the superstructure was assessed at Rs,15,21,118 and for the land underneath the house @ Rs,6,000 per Kanal. Being dissatisfied the owners- objectors filed objection petition before the Land Acquisition Judge, Haripur, wherein they claimed a sum of Rs,50,00,000 for the built up property and Rs,20,000 per Kanal for the land underneath. The respondents contested the objection petition. Upon the pleadings of the parties following issues were framed:-
(1) Whether the awarded compensation for the disputed property is inadequate, if so what is the correct compensation to which the petitioners are entitled?
(2) Whether petitioners have got a cause of action?
(3) Whether the petition is bad in its present form?
(4) Whether the petition is bad on account of non-joinder and misjoinder of parties?
(5) Whether petitioners have received compensation if so to what effect?
(6) Relief.
' The parties led their respective evidence. The learned Additional District Judge Haripur vide his order dated 4-9-1979 appointed Mr. Shaukat Zaman Sub-Engineer District Council, Abbottabad as Local Commissioner who appeared before the Court on 30-1-1980 and informed it that the house in question was a big 'Mahal' consisting of number of rooms, floors and it was impossible for him alone to carry out assessm ent of the superstructure in accordance with the rates prevailing at the time of its acquisition, as for this purpose he would have to measure every inch of the superstructure and to collect evidence. The Court acceded to the request of Mr. Shaukat Zaman and appointed Mr. Hazrat Sultan Executive Engineer P.W.D. (Building ) Abbottabad as Local Commissioner and directed Mr. Shaukat Zaman to assist him in the job. Mr. Hazrat Sultan due to his preoccupations showed his inability to carry out the entrusted job and requested that same may be assigned to somebody else vide his letter dated 23-7-1979. The learned Court thereafter substituted District Engineer District Council, Abbottabad to be a Local Commissioner with Mr. Shaukat Zaman Sub-Engineer as his coopted member and both of them were directed to visit the suit house, take measurements and assess the cost of superstructure in accordance with rates prevailing at the time of acquisition of the property. They submitted their report wherein they assessed Rs,22,65,437 as cost of the building. The Referee Court after taking into account the evidence of the parties and the Commission reports, dismissed the objection petition and affirmed the award. The appellants feeling aggrieved of the judgment/decree of the Referee Court filed an appeal before this Court) R.FA. No, 7 of 1985) which was accepted and the case was remanded back to the learned Referee Court for decision afresh after allowing the parties an opportunity to lead their further evidence. After remand the objector did not wish to produce any other evidence and relied on the evidence already recorded by him. However, the respondents produced Obaidullah Khan S.D.O. WAPDA twice. The Court after considering the material available on the record enhanced the price of land on the basis of one year average to Rs,9,950.20 per Kanal and held that the objectors were not entitled to the enhancement in respect of superstructure. With this modification he partly accepted the objection petition vide his judgment and decree dated 30-11- 1992. The appellants have impugned the said judgment/decree in this R.FA.
3. Learned counsel for the appellants contended that the learned Referee Court discarded the report of the Local Commissioner simply on the ground that they did not assess the compensation of the building in question in accordance with scheduled rates of WAPDA but preferred estimated cost prepared on the basis of the said rates by Mr. Obaiduallah, S.D.O. WAPDA whereby the cost of the building was assessed at Rs,15,21,118 whereas under the law the value should have been determined under the provisions of section 23 of the Land Acquisition Act. He submitted that the appellants were not bound to accept the WAPDA schedule rate on which their valuable property was assessed. He submitted that the assessment which has been carried out by the Local Commissioners being exhaustive and in detail was quite reasonable and should have been accepted by the Court. Learned counsel also made a statement at the bar that the Local Commissioners report may be accepted being the total compensation of the property inclusive of the value of the land underneath of the building.
4. Opposing the aforesaid contentions, the learned counsel for the respondents submitted that the appellants have been adequately compensated as the superstructure had been assessed keeping in view the WAPDA schedule rate and the value of land has already been enhanced by the learned Referee Court. They defended the award and the decree and submitted that the appellant is no more entitle to any further compensation.
5. We have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
6. Section 23 of the Land Acquisition Act defines matters to be considered while determining the amount of compensation for the land acquired under the Act, which are as follow: "23. Matters to be considered in determining compensation.--(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration:- ' First, the market-value of the land at the date of the publication of the notification under section 4, subsection(1), ' Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; ' thirdly, the damage (if any) sustained by the person interested, at the time of the Collectors taking possession of the land, by reasons serving such land from his other land; ' Fourthly, the damage(if any) sustained by the person interested, at the time of Collector's taking possession of the land by reason of the acquisition injurisously affecting his other property, movable or immovable, in any other manner, or his earnings; ' fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such damage; and ' sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum of such market value, in consideration of the compulsory nature of the acquisition."
' In the above section word 'land' has been repeatedly used which has been defined in clause (a) of section 3 of the Act, which includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. According to this definition land means land alongwith any superstructure, fixtures etc. Thereon and the benefits accruing therefrom, as such the word 'land' has an enlarged meaning which can be equated with the term immovable property as defined in section 3 (25) of the General Clauses Act (X of 1897). The first matter which has to be considered for determination of compensation of the land is its market value as on the date of the publication of the Notification under section 4 of the Act, hence it essentially implies the market value as the value of the property acquired. The function of the assessing authority under section 23 of the Act was to find out the market value of the property to be acquired not necessarily under their own schedule rates, but with reference to the principles laid down in it. It is well settled that under this section that an owner is entitled to get the compensation of his property which a willing vendor might reasonably expect to obtain from a willing purchaser. The usual methods which are adopted for the determination of market value on the date of notification under section 4 of the Act are: (1) Opinion of the valuators/experts (ii) price paid within a reasonable time in bona fide transactions of the similar properties within its close proximity, and
(iii) rents and profits of the property received shortly before the acquisition. The mode of valuation is not governed by any uniform rule but either of the above or more than one may be adopted by the Collector or the Court having regard to the nature of the property. In respect of building which had not been let out, the method to assess its market value was to fix the estimated cost of reproducing the building at the present time minus depreciation in consideration of the age of the building and for the costs of such repairs as might be required apart from depreciation, while another menhod was to ascertain the value through the valuators or the experts. In this case the Court appointed two experts jointly for assessing the value of the building who after taking measurements of every item of the huge building (Havaili) submitted their report item-wise comprising of 187 pages. The valuation of the building was prepared in accordance with the schedule rates of C&W for the year 1967-68 which come to Rs,22,65,437 Mr. Obaidullah Khan S.D.O., WAPDA in his statements Exhs. RC, RD, RW 1/C/4, RW1/C/5, RW 1/C 6 etc., conceded that first class material and accessories had been used in the building which contained structures of architectural and ornamental beauty, hence to such a building schedule rate of WAPDA which were even lesser to the C&W Schedule rates could not be applied. Syed Asghar Hussain Sub- Engineer of the acquiring department prepared the estimate valuing the building to Rs,15,21,118 which was endorsed by Noroz Khattak XEN (RW.2), who in his statement admitted that no inquiry was made regarding the market value of the items which were available in the schedule. He also affirmed that he checked only 30 per cent of the measurements. The valuation statement prepared by the Local Commissioners cannot be brushed aside as the same is based on their personal observations, inquiry and on the facts of their own knowledge. They appeared in Court as witnesses in support of their valuation statement which gives the rate adopted by them. They were disinterested and independent Officers whose report can be relied upon. As against this the value got assessed by the owner through the private firm cannot be attached any importance as it was prepared in absence of the other side and likewise the valuation assessed by the officers of acquiring department being partial cannot be given any significance.
The law envisages the valuation of the market value of the acquired property which the owner is entitled to get. The valuation statement of the Local Commissioners seems to be nearer to the market value, as such the same is approved with the modification that the valuation of the building Rs,22,65,437 would also include the value of the land as well, hence after adjusting the total compensation of land amounting to Rs,2,38,804./80 from Rs,22,65,437 the balance amount be paid alongwith compulsory acquisition charges and interest at permissible rates to the appellants as agreed by their counsel.
' The appeal is allowed in the above terms with no order as to costs.